January 7, 2019

Please mark your calendars and plan to attend the upcoming WAGLAC meetings.
WAGLAC San Diego Meeting
February 18-20, 2019
The Westin San Diego
San Diego, CA
WAGLAC will be meeting in San Diego on February 19th and 20th. In addition to the roundtable discussion, Eric M. Katz, Supervising Deputy Attorney General Natural Resources Law Section of the Office of California Attorney General has been invited to speak on California Surface and Groundwater: New Developments in the Sacramento-San Joaquin Delta and the Sustainable Groundwater Management Act (SGMA). 

Please complete a registration form (located at the bottom of the meeting announcement) and email to CWAG Executive Assistant, Joy Orr at  joy.orr@doj.ca.gov or fax to 916-323 0241 by no later than  January 28th, 2019.
NAAG Winter Meeting
March 4-6, 2019
Washington, D.C.

CWAG, as part of the NAAG Spring Meeting, sets up meetings with the heads of federal agencies.  The Attorneys General typically ask WAGLAC for a list of current issues to discuss with the federal agency heads. This year CWAG plans to meet with the Department of Interior. Please send Clive Strong at Clive.Strong@cwagweb.org a list of any issues you think should be discussed with the Department of Interior. 
CWAG Annual Meeting
June 17-20, 2019
The Ritz Bacara
Santa Barbara, CA
States Prepare Ambitious Agendas for 2019
The Hill
December 31, 2018

Democrats and Republicans in state legislatures across the country are preparing ambitious new agendas for the year ahead, buoyed by election results that cemented single-party control of all but a small handful of states.
Once new governors and legislators are sworn in in the coming weeks, more than three-quarters of Americans will live in states in which one party controls all levers of state government. 
Democrats will hold all the power in 14 states, where about a third of all Americans live. Those states are mostly on the West Coast and in the Northeast, along with Colorado and New Mexico in the Mountain West, and Illinois. 
In those states, Democratic legislative leaders said they would focus on bills to combat climate change and gun violence, expand voting rights and health-care access, and increasing salaries paid to school teachers.

Republicans will run 22 states across the Mountain West, the South and the Rust Belt, accounting for about 42 percent of the population and including mega-states like Florida, Texas and Ohio.
Red-state legislative leaders said they would move to cut taxes, boost broadband spending in rural areas and attract new workers to help grow their economies.
Juliana v. United States
The U.S. Court of Appeals for the 9th Circuit granted the Department of Justice’s petition for interlocutory appeal of a youth group’s climate change case. A split panel allowed the Justice Department to appeal various adverse rulings by Judge Ann Aiken of the U.S. District Court for the District of Oregon, including Justice’s unsuccessful motions to dismiss the case and for summary judgment. Chief Judge Sidney Thomas and Judge Marsha Berzon said Judge Aiken “properly concluded that the issues presented by this case satisfied the standard” for an interlocutory appeal, which can occur when a district court order “involves a controlling question of law as to which there is substantial ground for difference of opinion” and where “an immediate appeal from the order may materially advance the ultimate termination of the litigation.” Judge Michelle Friedland dissented arguing Judge Aiken “does not actually think that the criteria for [interlocutory] certification are satisfied,” citing language in Aiken's latest order that she stood by her prior orders and that cases are best considered by appellate courts after they have been decided at the district court.
CWA Section 401 Update

On January 3, 2019, the Department of Justice filed an amicus brief recommending the Supreme Court grant review in Hawai’I Wildlife Fund, et al. v. County of Maui and deny review in Upstate Forever, et al. v. Kinder Morgan Energy Partners. Both cases raise the question of whether the CWA extends to pollution that flows through ground water.  

Justice stated County of Maui raises an “important question” that should be decided by the Court because “[t]he courts of appeals are divided on the question whether a CWA 'discharge of a pollutant' occurs when pollutants are released from a point source to groundwater and migrate through, or are conveyed by, groundwater to navigable waters.” Justice recommended against granting review in Upstate Forever because the case involves other legal issues that might cloud resolution of the ground water issue.

Justice also stated “the [Section 401] review process initiated by the agency’s request for comment is not an appropriate reason to deny certiorari here. The EPA has informed this Office that it expects to take further action, reflecting the results of its review, within the next several weeks. If the Court grants one or both of the petitions, the parties therefore should have the benefit of the EPA’s views before any brief on the merits is due, and the Court can consider those views in deciding the issue on the merits.”  The brief does not address the impact of the current government shutdown on EPA’s review process.
‘Not a Problem You Can Run Away From’: Communities Confront the Threat of Unregulated Chemicals In Their Drinking Water
Washington Post
January 2, 2019

"The day this small town told its residents to stop drinking the water, life on Glendale Boulevard turned from quiet to alarming.

That late July day, this town along the banks of the Kalamazoo River became the latest community affected by a ubiquitous class of compounds known as polyfluoroalkyl and perfluoroalkyl substances, or PFAS. For years, calls for the federal government to regulate the chemicals have been unsuccessful, and last year the Trump administration tried to block publication of a study urging a much lower threshold of exposure.

In Parchment...tests found PFAS levels in the water system in excess of 1,500 parts per trillion — more than 20 times the Environmental Protection Agency’s recommended lifetime exposure limit of 70 parts per trillion.

Local officials promptly alerted residents. Michigan officials declared a state of emergency. People started picking up free cases of bottled water at the high school. Within weeks, the town abandoned the municipal wells that had served 3,000 people and began getting water from nearby Kalamazoo."
Bullock Prevails Over Attorney General in Conservation Easement Case Before Montana Supreme Court
Helena Independent Record
December 11, 2018

In a 6-1 decision, the Montana Supreme Court overturned a legal opinion by Attorney General Tim Fox, ruling that Gov. Steve Bullock acted within the law when he sidestepped the Montana State Board of Land Commissioners to finalize an eastern Montana conservation easement.

As a result of the ruling, the Land Board will no longer cast the deciding vote on conservation easements. Final approval now lies with the Fish and Wildlife Commission, meaning three additional easements already passed by the commission but halted by the attorney general's opinion are now completed.
Western Governors, U.S. Department of Agriculture Sign MOU to Address Land Management Collaboratively
December 12, 2018

The Western Governors’ Association (WGA) and the U.S. Department of Agriculture (USDA) have signed a Memorandum of Understanding (MOU) to “establish a framework to allow the Forest Service and WGA to work collaboratively to accomplish mutual goals, further common interests, and effectively respond to the increasing suite of challenges facing western landscapes.”

The agreement, announced at the WGA 2018 Winter Meeting in Hawai’i, is an outgrowth of two ongoing activities: the Shared Stewardship initiative of Secretary of Agriculture Sonny Perdue and the National Forest and Rangeland Management Initiative of Western Governors.

The agreement was signed at the meeting by Secretary Perdue, WGA Chair and Governor of Hawaiʻi David Ige, and WGA Vice Chair and Governor of North Dakota Doug Burgum.
Supreme Court Case to Watch in 2019 Regarding Federal Agency Powers
The Hill
December 30, 2018

The justices have agreed to hear arguments in a dispute over how much courts should defer to federal agencies in deciding legal challenges to ambiguous regulations.

James Kisor, a Vietnam War veteran, is asking the court to overturn precedent that directs courts to generally rely on the agency’s interpretation of its own regulation. The lawsuit against the Department of Veteran Affairs stems from a dispute over disability benefits.

Kisor argues the court’s precedent incentivizes agencies to promulgate vague and broad regulations, which they can later clarify through interpretive rules without having to go through public notice-and-comment procedures. The Trump administration, however, argues this is a poor case for the court to reconsider its precedent.

In a Wall Street Journal op-ed, Peter Wallison, a senior fellow at the conservative American Enterprise Institute, said ruling in favor of Kisor could significantly limit the powers of the federal administrative state.

The date of oral arguments has not yet been set.
Franchise Tax Board of California v. Hyatt (17-1299
Cornell Law School Legal Information Institute
January, 2019

The Supreme Court will hear argument in Franchise Tax Board of California v. Hyatt on January 9, 2019. This will be the third time the case has been before the Supreme Court. At issue is whether the Court should overturn Nevada v. Hall, 440 U.S. 410 (1979), which permits a state to be sued in the courts of another state without its consent.  

Gilbert Hyatt claimed to have moved from California to Nevada in September 1991. The Franchise Tax Board of California (FTB), however, claimed Hyatt moved in April 1992 after licensing a microprocessor patent, and thus Hyatt owed over $10 million in taxes, penalties, and interest to California. Hyatt sued FTB in Nevada state court alleging intentional tort and bad faith conduct claims against the FTB. The Board argued Nevada courts were required to give FTB immunity to which it would be entitled under California law. In 2003, the Supreme Court unanimously upheld the Nevada Supreme Court’s decision holding that the Full Faith and Credit Clause did not require Nevada to apply California’s immunity law. On remand Hyatt was awarded over $400 million in damages, which the Nevada Supreme Court subsequently reduced to $1 million. FTB then filed a second c ertiorari, petition asserting Nevada v. Hall should be overruled or alternatively the damages should be capped at the level that could be awarded against a Nevada state agency under the Full Faith and Credit Clause. Hyatt II, 136 S.Ct. l1277 (2016). As a result of the death of Justice Scalia, the Supreme Court deadlocked in Hyatt II on whether to overturn Nevada v. Hall. The Court, however, limited the amount of damages Nevada courts could award against FTB to the amount they could award against Nevada agencies. Following Hyatt II the Nevada Supreme Court capped damages against FTB at $50,000. 

In Hyatt III, the FTB again argues Nevada v. Hall should be overruled. “The State of Indiana and 43 other states (“the States”), [filed an amicus brief] in support of Franchise Tax Board, argu[ing] that Nevada v. Hall’s central holding, allowing states to be sued in the courts of other states, offends the status of states as sovereign entities. The States reason that because the Eleventh Amendment prevents suits against states in federal court against their will, allowing states to be sued in the courts of another state would be an insult to state sovereignty. Therefore, the States posit, Hall cannot have been correctly decided. Further, the States assert that federal courts were specifically designed to provide a neutral forum to hear matters where state courts might have a bias favoring their own citizens over citizens of other states—it makes no sense to not allow such cases to be heard in a neutral federal court but allow them to be heard in a biased state court. Additionally, the States also contend that not overruling Hall allows states to dictate how other states allocate resources in furtherance of their policy goals because lawsuits awarding damages reduce the amount of resources available to allot to those policy goals. The States insist that this puts a strain on the democratic process because the allocation of resources by a state government, in accordance with the will of its citizens, is central to the political process. And by awarding damages against a state-defendant, according to the States another state’s court would force the state-defendant to allocate resources away from a policy goal, contravening the will of the state-defendant’s citizens. Suits regarding a state’s taxing power are uniquely important, the States argue, because the taxing power is central to sovereignty, as evidenced by federal legislation limiting federal courts jurisdiction over state taxing power. The States contend that in giving plaintiffs the opportunity to sue state agencies in the courts of other states, Hall allows plaintiffs to circumvent the administrative procedures for addressing their concerns in the underlying state, and thereby further insulting state sovereignty.”
Attorney General Laxalt Issues Statement on Confirmation of Nicholas Trutanich as US Attorney for Nevada
January 3, 2019

Nevada Attorney General Adam Paul Laxalt issued the following statement after the U.S. Senate unanimously confirmed the President’s nomination of Nicholas Trutanich as U.S. Attorney for Nevada:

“Nicholas Trutanich is one of the most talented and capable people I’ve ever had the privilege to work with,” said Attorney General Adam Laxalt. “During his tenure as Chief of Staff for the Attorney General’s Office, he displayed unparalleled capacity to handle any issue affecting our office and the State. He did so with a heart for service and a drive for perfection. I have no doubt that Trutanich will exercise the same leadership and excellence to impact the lives of Nevadans as our U.S. Attorney.”

After graduating from Georgetown University Law Center, Trutanich began his legal career practicing with the national firm Kirkland & Ellis, LLP working on complex commercial matters. He then served as a law clerk for U.S. District Judge Manuel L. Real in the Central District of California. Soon after, he began his career in public service as a Supervisor in the Violent and Organized Crime Section and as the Gang Coordinator in the U.S. Attorney’s Office in Los Angeles. During his more than six years with the U.S. Attorney’s Office, which included a detail as the Deputy Justice Attaché in Baghdad, Iraq, Trutanich also prosecuted in the office's National Security Section.
Indian Law Deskbook Summaries Update

Clay Smith, the American Indian Law Deskbook chief editor, resumed the practice of summarizing Indian law decisions assigned headnotes by Westlaw to facilitate the Deskbook’s annual revision. The summaries have been available for Deskbook chapter editors but may be useful to other attorneys in AGOs with Indian law-related responsibilities.
The summaries are posted in CWAG’s Google Docs account. If any AAG/DAG wishes to access the summaries folder (or “drive”), please have the attorney send her/his office email address to  Clay.Smith@cwagweb.org or  afriedman@cwagweb.org. The attorney will be sent a link to the case summaries folder. The link should be saved because the folder is regularly updated with new summaries. Any summary can be reviewed on-line and/or downloaded in a number of different applications, including Word and pdf. Contact Clay or Andrea Friedman with any questions.
Updated  American Indian Law Deskbook  Is Now Available

The  American Indian Law Deskbook is a concise, direct, and easy-to-understand handbook on Indian law. The chapter authors of this book are experienced state lawyers who have been involved in Indian law for many years.

American Indian Law Deskbook addresses the areas of Indian law most relevant to the practitioner.
Topics include:
  • Definitions of Indians and Indian tribes
  • Indian lands
  • Criminal, civil regulatory, and civil adjudicatory jurisdiction
  • Civil rights
  • Indian water rights
  • Fish and wildlife
  • Environmental regulation
  • Taxation
  • Gaming
  • Indian Child Welfare Act and tribal-state cooperative agreements
CWAG oversees and coordinates the Western Attorneys General Litigation Action Committee (WAGLAC), which consists of assistant attorneys general involved in litigation related to the environment, natural resources, public lands and Indian law. WAGLAC was formed over 30 years ago and meets three times per year to discuss the latest developments in these areas of the law. AGO staff gain important contacts throughout the country in these important areas of the law.